“A TRAP FOR THE UNWARY”: WHEN DOES TIME FOR APPEALING START TO RUN WHEN A JUDGMENT IS SENT OUT? CLARITY IS ESSENTIAL

The judgment of Mr Justice Hayden in  F (A Minor) (Permission To Appeal) [2025] EWHC 638 (Fam) highlights a trap for those seeking permission to appeal.  The time for appealing runs from the date that the order was announced and not the date that the formal order recording the decision was issued.  The judge set out guidance in family cases in an attempt to avoid difficulties. Similar issues apply in civil cases.  The case also observes that the trial judge may well not have jurisdiction to grant permission to appeal, this is another point to watch.

“Whenever a party seeks an adjournment of the decision hearing to consider whether to make an application for permission to appeal or to prepare for it, they should also seek an extension of time (see McDonald v Rose para. 21(5)). The Court of Appeal was very clear that, even though a decision hearing may be adjourned, the 21 days (within which an appeal must be filed, in accordance with the FPR) run from the date the decision was formally announced and not the date that the formal order recording the decision was issued. Underhill LJ regarded this as “uncontroversial” and considered that it “should be known to any practitioner, though experience shows it is often overlooked”.

THE CASE

A party in a childcare was seeking permission to appeal.   The trial judge had granted permission to appeal out of time.  However the question arose as to whether the trial judge did, in fact, have jurisdiction to grant permission to appeal.

THE RULES

In this case the the judge was considering the FPR, however identical provisions apply in the CPR.

“The question arises however, as to whether the Judge, on 25^th October 2024, retained jurisdiction to consider the out of time application at all. This requires consideration of the Family Proceedings Rules 2010 (FPR), 30.3(3):

(3) An application for permission to appeal may be made –

(a) to the lower court at the hearing at which the decision to be appealed was made or, if the hearing is adjourned to a later date, the hearing on that date; or

(b) to the appeal court in an appeal notice.”

 

CPR 52.3 (2) is in similar terms.

 

(2) Unless the appeal is within paragraph (1)(c), an application for permission to appeal may be made—

(a) to the lower court at the hearing at which the decision to be appealed was made or any adjournment of that hearing; or

(b) to the appeal court in an appeal notice.

THE JUDGE’S REVIEW OF THE CASE LAW

1. 1. In McDonald v Rose (supra), Underhill LJ observed that the authorities, referred to above and the rules procedures, were not widely understood by prospective appellants. This application provides a further, timely, opportunity to remind practitioners and judges of the scope and reach of FPR 30.3(3). The position is set out by Underhill LJ, in the context of the CPR, but applies equally, as I have said, to the FPR:

“21. (1) The date of the decision for the purposes of CPR 52.12 is the date of the hearing at which the decision is given, which may be ex tempore or by the formal hand-down of a reserved judgment: see Sayers v Clarke and Owusu v Jackson. We call this the decision hearing.

(2) A party who wishes to apply to the lower court for permission to appeal should normally do so at the decision hearing itself. In the case of a formal hand-down where counsel have been excused from attendance that can be done by applying in writing prior to the hearing. The judge will usually be able to give his or her decision at the hearing, but there may be occasions where further submissions and/or time for reflection are required, in which case the permission decision may post-date the decision hearing.

(3) If a party is not ready to make an application at the decision hearing it is necessary to ask for the hearing to be formally adjourned in order to give them more time to do so: Jackson v Marina Homes. The judge, if he or she agrees to the adjournment, will no doubt set a timetable for written submissions and will normally decide the question on the papers without the need for a further hearing. As long as the decision hearing has been formally adjourned, any such application can be treated as having been made “at” it for the purpose of CPR 52.3 (2) (a). We wish to say, however, that we do not believe that such adjournments should in the generality of cases be necessary. Where a reserved judgment has been pre-circulated in draft in sufficient time parties should normally be in a position to decide prior to the hand-down hearing whether they wish to seek permission to appeal, and to formulate grounds and such supporting submissions as may be necessary; and that will often be so even where there has been an ex tempore judgment. Putting off the application will increase delay and create a risk of procedural complications. But we accept that it will nevertheless sometimes be justified.

(4) If no permission application is made at the original decision hearing, and there has been no adjournment, the lower court is no longer seized of the matter and cannot consider any retrospective application for permission to appeal: Lisle-Mainwaring.

(5) Whenever a party seeks an adjournment of the decision hearing as per (3) above they should also seek an extension of time for filing the appellant’s notice, otherwise they risk running out of time before the permission decision is made. The 21 days continue to run from the decision date, and an adjournment of the decision hearing does not automatically extend time: Hysaj. It is worth noting that an application by a party for more time to make a permission application is not the only situation where an extension of time for filing the appellant’s notice may be required. It will be required in any situation where a permission decision is not made at the decision hearing. In particular, it may be that the judge wants more time to consider (see (2) above): unless it is clear that he or she will give their decision comfortably within the 21 days an extension will be required so as to ensure that time does not expire before they have done so. In such a case it is important that the judge, as well as the parties, is alert to the problem.

(6) As to the length of any extension, Brooke LJ says in Jackson v Marina Homes (para. 8) that it should normally be until 21 days after the permission decision. However, the judge should consider whether a period of that length is really necessary in the particular case: it may be reasonable to expect the party to be able to file their notice more promptly once they know whether they have permission.”

1. 1. Since March 2020, the start of the COVID-19 pandemic, reserved judgments in the Family Courts and in the Court of Protection have, in most cases, been handed down remotely in accordance with a “Covid Protocol”. The practice has worked well and is now so embedded that it is been retained, notwithstanding that the Courts have resumed routine sitting in attended hearings. However, there has been some confusion as to the point at which the decision (to be appealed) is actually made, see FPR 30.3(3), para. 7 above. The regime, as discussed above, is both clear and understandable, but it is, as I have foreshadowed, one with which some practitioners and judges have become unfamiliar.

1. 1. It is, I hope, helpful to reiterate what is required:

An oral hand-down or ex-tempore judgment:

For the purposes of an application for permission to appeal to a first instance judge, the decision to be appealed is made either at the time of the oral hand-down or the date on which the judge adjourns the permission application to be heard. After that point, the first instance judge has no further jurisdiction and recourse must be had to the Appellate Court.

If no permission application is made at the decision hearing and, accordingly, there has been no adjournment, the lower court has no further jurisdiction and cannot consider any retrospective application for permission to appeal.

A reserved judgment, handed down either in court or electronically:

A judge who has written a reserved judgment will, ordinarily, circulate the draft of the judgment to the parties. This will be to afford the opportunity, most particularly where the parties are represented, for corrections, amendments, anonymisation and compliance with Transparency Orders, et cetera.

The judge will and ought to set a deadline for response, indicating that following consideration of any suggested amendments, the perfected judgment will be handed down. In the majority of cases, this will be an electronic hand-down and thus not require the attendance of the parties.

When the judge has perfected the draft, he or she must communicate to the parties the date on which the judgment will be handed down. This will afford them further opportunity to consider or indicate whether they wish to appeal.

In the event that an application is to be made, the judge will either provide that the hand-down hearing should be attended, so that the application may be made, or set a separate date for the application to be heard. It is also possible that an application for permission may be made in writing, where the judge agrees. Again, this may be either at the hand-down date or the adjourned date.

In McDonald v Rose (supra), the Court of Appeal emphasised that adjournments should not be necessary in the generality of cases. In contemporary practice, as I have referred to above, this has even greater force. The judgment will have effectively been pre-circulated in draft and ordinarily that will provide sufficient time for the parties to decide, prior to the hand-down hearing, both whether they wish to seek permission to appeal and to formulate grounds and such supporting submissions as may be necessary. Adjourning the application will inevitably serve to increase delay and generate a risk of some procedural complication. But, as the Court of Appeal accepted, “it will nevertheless sometimes be justified”.

To reiterate, for the purposes of FPR 30.3(3), the ‘decision to be appealed’ date is either the date of hand-down, if no application is made, or the date on which the application for permission to appeal is determined.

Notice of hand-down of reserved judgment must be given in the daily Cause List. The following wording is likely to be helpful:

“This judgment will be handed down remotely by circulation to the parties or their representatives by email.”

Where appropriate, the following should be added:

“…and released to the National Archives. A copy of the judgment in final form as handed down should be available on the National Archives website shortly thereafter.”

1. 1. In order to achieve clarity, when the perfected judgment is sent to the parties, it seems sensible to include the following:

“I attach the judgment in this case by way of hand-down, which will be deemed to have occurred at [time] on [day, date, month, year].”

1. 1. Compliance with the above should avoid any ambiguity as to when a judgment was handed down and, accordingly, clarify when a first instance judge may hear an application for permission to appeal their own decision.

“A trap for the unwary.”

The judge observed that this was a trap for the unwary.

1. 1. “Whenever a party seeks an adjournment of the decision hearing to consider whether to make an application for permission to appeal or to prepare for it, they should also seek an extension of time (see McDonald v Rose para. 21(5)). The Court of Appeal was very clear that, even though a decision hearing may be adjourned, the 21 days (within which an appeal must be filed, in accordance with the FPR) run from the date the decision was formally announced and not the date that the formal order recording the decision was issued. Underhill LJ regarded this as “uncontroversial” and considered that it “should be known to any practitioner, though experience shows it is often overlooked”.

“Did HHJ Arthur have jurisdiction to hear permission to appeal?”

The consequence of this is that, in the current case, the trial judge did not have jurisdiction to grant permission to appeal.

1. 1. “The Applicant has not raised this point. As a litigant in person, he could not be expected to have done so. When granting permission to appeal out of time, HHJ Arthur considered that she had delivered the judgment, via email, over a month earlier, i.e. on 25^th July 2024. She had intended that F should have the judgment delivered to him, by “M’s solicitors via email”. As related above, this did not happen. The judgment was eventually sent to the Applicant on 9^th October 2024. Though the Judge was sceptical of the chronology, she gave the Applicant “the benefit of the doubt”. Accordingly, I must proceed based on this chronology.

1. 1. Both parties continued the litigation and proceeded on the basis that a judgment was handed down at some point. However, in the circumstances, I have not been able to identify when that date most likely was. The procedure that I have laboured to set out above is the one that requires to be followed. The judgment is deemed to be handed down in Court and communicated electronically. This is why it requires to be posted on the Cause List. This is different from emailing the judgment directly to the parties, without the formalities of a hand-down process, which seems to have occurred here. Emailing a perfected judgment directly to the parties, without the procedural compliance identified above, is unsatisfactory and to be deprecated.

1. Accordingly, I can not be satisfied that HHJ Arthur had jurisdiction to hear the application for permission to appeal. The grounds of the appeal advanced by the Applicant all relate to the fact-finding judgment. This is an entirely logical position on his part. The findings of fact, made by the Judge are integral to her ultimate welfare conclusions. It is entirely right that they should be. Were they not, there would have been no point in having a fact-finding hearing. I propose therefore, to consider the permission application afresh, having concluded that the application requires to be heard by the High Court. The delays in the County Court were replicated in the appeal process. I do not propose to address them. They arose in consequence of an administrative confusion and the challenges faced by a litigant in person. In the circumstances, I grant permission to appeal out of time.”